Public Law 93-638
Indian Self-Determination
and
Education Assistance Act,
as Amended
Regulations
Final Rule
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Indian Health Service
SUMMARY:
The Secretaries of the Department of Interior (DOI) and the Department of Health and Human Services (DHHS) hereby issue a joint rule to implement section 107 of the Indian Self-Determination Act, as amended, including Title I, Pub. L. 103-413, the Indian Self-Determination Contract Reform Act of 1994. This joint rule, as required by section 107(a)(2)(A)(ii) of the Act, will permit the Departments to award contracts and grants to Indian tribes without the unnecessary burden or confusion associated with having two sets of rules for single program legislation. In section 107(a)(1) of the Act Congress delegated to the Departments limited legislative rulemaking authority in certain specified subject matter areas, and the joint rule addresses only those specific areas. As required by section 107(d) of the Act, the Departments have developed this final rule with active tribal participation, using the guidance of the Negotiated Rulemaking Act.
DATES:
This rule became effective on August 23, 1996.
FOR FURTHER INFORMATION CONTACT:
James Thomas, Division of Self-Determination Services, Bureau of Indian Affairs, Department of the Interior, Room 4627, 1849 C Street N.W., Washington, DC 20240, Telephone (202) 208-5727 or
Merry Elrod, Division of Self-Determination Services, Office of Tribal Activities, Indian Health Service, Room 6A-19, 5600 Fishers Lane, Parklawn Building, Rockville, MD 20857, Telephone (301) 443-6840/1104/1044.
SUPPLEMENTARY INFORMATION:
The 1975 Indian Self-Determination and Education Assistance Act, Pub. L. 93-638, gave Indian tribes the authority to contract with the Federal government to operate programs serving their tribal members and other eligible persons. The Act was further amended by the Technical Assistance Act and other Acts, Pub. L. 98-250; Pub. L. 100-202; Interior Appropriations Act for Fiscal Year 1988, Pub. L. 100-446; Indian Self-Determination and Education Assistance Act Amendments of 1988, Pub. L. 100-472; Indian Reorganization Act Amendments of 1988, Pub. L. 100-581; miscellaneous Indian Law Amendments, Pub. L. 101-301; Pub. L. 101-512; Indian Self-Determination and Education Assistance Act Amendments of 1990, Pub. L. 101-644; Pub. L. 102-184; Pub. L. 102-573; Pub. L. 103-138; Indian Self- Determination Act Amendments of 1994, Pub. L. 103-413; Pub. L. 103-435; and Pub. L. 103-437. Of these, the most significant were Pub. L. 100-472 (the 1988 Amendments), Pub. L. 101-644 (the 1990 Amendments) and Pub. L. 103-413 (the 1994 Amendments).
The 1988 Amendments substantially revised the Act in order to increase tribal participation in the management of Federal Indian programs and to help ensure long-term financial stability for tribally-run programs. Senate Report 100-274 at 2. The 1988 Amendments were also intended to remove many of the administrative and practical barriers that seem to persist under the Indian Self-Determination Act. Id. at 2. In fashioning the amendments, Congress directed that the two Departments develop implementing regulations over a 10-month period with the active participation of tribes and tribal organizations. In this regard, Congress delegated to the Departments broad legislative rulemaking authority.
Initially the two Departments worked closely with Indian tribes and tribal organizations to develop new implementing regulations, culminating in a joint compromise September 1990 draft regulation reflecting substantial tribal input. Thereafter, however, the two Departments continued work on the draft regulation without any further tribal input. The revised proposed regulation was completed under the previous administration, and the current administration published the proposed regulation (1994 NPRM) for public comment on January 20, 1994, at 59 FR 3166. In so doing, the current administration expressed its concern over the absence of tribal participation in the regulation drafting process in the years following August 1990, and invited tribes to review the 1994 NPRM closely for possible revisions.
Tribal reaction to the January 1994 proposed regulation was extremely critical. Tribes, tribal organizations, and national Indian organizations criticized both the content of the 1994 NPRM and its length, running over 80 pages in the Federal Register. To address tribal concerns in revising the proposed regulations into final form, the Departments committed to establish a Federal advisory committee that would include at least 48 tribal representatives from throughout the country, and be jointly funded by the two Departments.
In the meantime, Congress renewed its examination into the regulation drafting process, and the extent to which events since the 1988 amendments, including the lengthy and controversial regulation development process, justified revisiting the Act anew. This Congressional review eventually led to the October 1994 amendments. (Similar efforts by tribal representatives to secure amendments to the Act in response to the developing regulations had been considered by Congress in 1990 and 1992.)
The 1994 amendments comprehensively revisit almost every section of the original Act, including amending the Act to override certain provisions in the January 1994 NPRM. Most importantly for this new NPRM, the 1994 amendments also remove Congress prior delegation to the Departments of general legislative rulemaking authority. Instead, the Departments authority is strictly limited to certain areas, a change explained in the Senate report that accompanied the final version of the bill:
Section 105
of the bill addresses the Secretaries authority to promulgate interpretative regulations in carrying out the mandates of the Act. It amends section 107 (a) and (b) of the Act by limiting the delegated authorization of the Secretaries to promulgate regulations. This action is a direct result of the failure of the Secretaries to respond promptly and appropriately to the comprehensive amendments developed by this committee six years ago.* * * * * * * * * *
Section 105(l)
amends section 107(a) by delegating to the Secretary the authority only to promulgate implementing regulations in certain limited subject matter areas. By and large these areas correspond to the areas of concern identified by the Departments in testimony and in discussions. Beyond the areas specified in subsection (a) * * * no further delegated authority is conferred.Sen. Rep. No. 103-374 at 14.
For this reason, the new rule covers substantially fewer topics than the January 1994 NPRM.
As specified by Congress, the new rule is limited to regulations relating to chapter 171 of title 28 of the United States Code, commonly known as the Federal Tort Claims Act; the Contract Disputes Act of 1978 (41 U.S.C. 601 et seq.); declination and waiver procedures; appeal procedures; reassumption procedures; discretionary grant procedures for grants awarded under section 103 of the Act; property donation procedures arising under section 105(f) of the Act; internal agency procedures relating to the implementation of this Act; retrocession and tribal organization relinquishment procedures; contract proposal contents; conflicts of interest; construction; programmatic reports and data requirements; procurement standards; property management standards; and financial management standards. All but three of these permitted regulatory topics--discretionary grant procedures, internal agency
procedures, and tribal organization relinquishment procedures--are addressed in this rule.
The 1994 amendments also required that, if the Departments elected to promulgate regulations, the Departments must use the notice and comment procedures of the Administrative Procedure Act, and must promulgate the regulations as a single set of regulations in title 25 of the Code of Federal Regulations. Section 107(a)(2). Finally, the 1994 amendments required that any regulations must be developed with the direct participation of tribal representatives using as a guide the Negotiated Rulemaking Act of 1990. This latter requirement is also explained in the accompanying Senate Report:
To remain consistent with the original intent of the Act and to ensure that the input received from the tribes and tribal organizations in the regulation drafting process is not disregarded as has previously been the case, section 107 also has been amended by adding a new subsection (d), requiring the Secretaries to employ the negotiated rulemaking process.
Sen. Rep. No. 103-374 at 14.
As a result of the October 1994 amendments and earlier initiatives previously discussed, the Departments chartered a negotiated rulemaking committee under the Federal Advisory Committee Act. The committee s purpose was to develop regulations that implement amendments to the Act.
The advisory committee had 63 members. Forty-eight of these members represented Indian tribes--two tribal members from each BIA area and tribes--two from each IHS area. Nine members were from the Department of the Interior and six members were from the Department of Health and Human Services. Additionally, four individuals from the Federal Mediation and Conciliation Service served as facilitators. The committee was co-chaired by four tribal representatives and two Federal representatives. While the committee was much larger than those usually chartered under the Negotiated Rulemaking Act, its larger size was justified due to the diversity of tribal interests and programs available for contracting under the Act.
In order to complete the regulations within the statutory timeframe, the committee divided the areas subject to regulation among six working groups. The workgroups made recommendations to the committee on whether regulations in a particular area were desirable. If the committee agreed that regulations were desirable, the workgroups developed options for draft regulations. The workgroups presented their options to the full committee, where the committee discussed them and eventually developed the proposed regulations.
The first meeting of the committee was in April of 1995. At that meeting, the committee established six workgroups, a meeting schedule, and a protocol for deliberations. Between April and September of 1995, the committee met five times to discuss draft regulations produced by the workgroups. Each of these meetings generally lasted three days. Additionally, the workgroups met several more times between April and September to develop recommendations for the committee to consider.
The policy of the Departments was, whenever possible, to afford the public an opportunity to participate in the rulemaking process. All of the sessions of the committee were announced in the Federal Register and were open to the public.
The Departments published draft regulations in a Notice of Proposed Rulemaking in the Federal Register on January 24, 1996, at 61 FR 2038 (1996 NPRM). In the 1996 NPRM, the Departments invited the public to comment on the draft provisions. In addition, the Departments outlined five areas in which the Committee had not yet reached consensus and asked for public comments specifically addressing those topics.
Ultimately, the Departments received approximately 76 comments from Indian tribes and tribal organizations, addressing virtually every aspect of the proposed regulation. The full committee reconvened in Denver between April 29, 1996 and May 3, 1996 to review the comments, to evaluate changes suggested by the comments, and to approve final regulatory language.
As a result of that meeting, the full committee was able to transmit a report to the Secretaries which included consensus regulatory language on all but four issues: internal agency procedures; contract renewal proposals; conflicts of interest; and construction management services. Tribal and Federal representatives prepared non-consensus reports on these four issues, which were submitted to the Secretaries for a decision. One additional question arose, pertaining to Sec. 900.3(b)(11) of the regulation, and that was also referred to the Secretaries. On May 23, 1996 a delegation of tribal representatives met with the Chiefs of Staff of the two departments to present the tribal view of the unresolved issues. Decisions have been made based upon the arguments presented at that meeting, and the regulation incorporates those decisions.
The Departments commend the ability of the committee to cooperate and develop a rule that addresses the interests of the tribes and the Federal agencies. This negotiated rulemaking process has been a model for developing successful Federal and tribal partnerships in other endeavors. The consensus process allowed for true bilateral negotiations between the Federal government and the tribes in the best spirit of the government-to-government relationship. In developing regulatory language, consensus was reached on the regulations which follow under subparts A through P . In addition, at the request of tribal and Federal representatives, the Secretaries agreed to publish additional introductory materials under subpart A.
Summary of Regulations and Comments Received
The narrative and discussion of comments below is keyed to specific subparts of the rule. Matters addressed under the heading Key Areas of Disagreement in the Notice of Proposed Rulemaking are discussed under the appropriate Subpart.
Subpart A -- Policy
Summary of Subpart
This subpart contains key congressional policies contained in the Act and adds several Secretarial policies that will guide the Secretaries implementation of the Act.
A number of comments recommended that the statement that tribal records are exempt from disclosure under the Freedom of Information Act (Sec. 900.2(d)) be further explained to include annual audit reports prepared by tribal contractors and tribal records archived by the Federal government. The suggestion regarding archived tribal records has been adopted. However, section 7502(f) of the Single Audit Act of 1984, 31 U.S.C. 7502(f), and OMB Circular No. A-128, Audits of State and Local Governments, subparagraph 13(e), state that single audit reports shall be available for public inspection within 30 days after the completion of the audit. Therefore, these audit reports are available for public inspection.
Numerous comments expressed concern over the nonapplicability of the Privacy Act to tribal medical records, in section 900.2(e). Although section 108(b) of the Act is binding in this respect, Subpart C (Sec. 900.8) has been amended to address the confidentiality of medical records. Indian Tribes and tribal organizations remain free to adopt their own confidentiality procedures, including procedures that are similar to Privacy Act procedures.
A large number of comments urged that the NPRM be amended to include a Secretarial policy to interpret Federal laws and regulations in a manner that will facilitate the inclusion of programs in contracts authorized by the Act. In response to these comments, the Committee has added the language in Secretarial policy statement in Sec. 900.3(b)(8). This policy is not intended to limit in any manner the scope of programs, functions, services or activities that are contractible under section 102(a)(1) of the Act.
Discussion of Comments
Several comments recommended that various policy statements be clarified to reflect the congressional policy that funds for programs, services, functions and activities are transferred to tribal contractors when contracts are awarded under the Act. These comments have been adopted and appropriate changes made to Sec. 900.3(a)(4), Sec. 900.3(b)(4) and Sec. 900.3(b)(9).
One comment found the last two words of Sec. 900.3(a)(8) confusing due to the inclusion of the words as appropriate. In response, these words have been deleted in the final rule.
Several comments recommended that the phrase and for which funds are appropriated by Congress be deleted from the Secretarial policy statement set forth in Sec. 900.3(b)(1). The Committee agreed and deleted this phrase in the final rule.
The Committee revised Sec. 900.3(b)(7) (referring to the scope of programs that are contractible under the Act) to be consistent with the new policy set forth in Sec. 900.3(b)(8).
Several comments urged that Sec. 900.d(b)(9) be amended to articulate more clearly the Secretaries duty to commence planning for the transfer of programs to tribal operation immediately upon receipt of a contract proposal. In response to the comments, Sec. 900.3(b)(9) has been revised.
A large number of comments urged that the provision regarding Federal program guidelines, manuals, or policy directives set forth in Sec. 900.5 of the NPRM be revised to refer more generally to any unpublished requirements. In response to these comments, Sec. 900.5 has been revised in the final rule.
Some comments urged that language be included to identify the inherent Federal functions that cannot lawfully be carried out by an Indian tribe or tribal organization, and that therefore may not be contracted under the Act. The Committee did not adopt these comments due to the subject-matter limitations on its rulemaking authority set forth in section 107(a)(1) of the Act. Similarly, the Committee did not address comments relating to the appropriate uses of program income generated under the Federal Medicare and Medicaid programs.
One comment expressed concern regarding the absence of clear provisions for tribal participation in the administration of Federal Indian programs. No change was made as this concern is already dealt with in Sec. 900.3(a)(1).
One comment recommended that the Secretary adopt a policy that Indian tribes participate in the development of the budgets of agencies other than the Indian Health Service and the Bureau of Indian Affairs. The Committee did not adopt this proposal due to the subject-matter limitation set forth in section 107(a)(1) of the Act, and the limitation in section 106(I) of the Act regarding tribal participation.
One comment urged that the Secretarial policy regarding tribal participation in budgetary matters set forth in Sec. 900.3(b)(6) be more clearly articulated as a mandatory duty. Nothing in the new regulation is intended to change the Department s current consultation requirements. Accordingly, no change was made in the text of the regulation.
A few comments urged that the phrase for the benefit of Indians because of their status as Indians or the phrase for the benefit of Indians be further defined in the regulation. The Committee rejected suggestions that the concept of contractibility be further explored in the regulations due to the specific subject-matter limitations of section 107(a)(1) of the Act.
Subpart B -- Definitions
Summary of Subpart
Subpart B
sets forth definitions for key terms used in the balance of the regulations. Terms unique to one subpart are generally defined in that subpart, rather than in subpart B.Summary of Comments
In response to one comment regarding the term awarding official the definition has been revised and an additional sentence added to make clear that an awarding official need not necessarily be a warranted contracting officer. Who the awarding official is in a particular situation will depend on to whom the Secretary has delegated authority to award the contract.
In response to comments regarding the scope of Subpart C (which deals with initial contract proposals ), the term initial contract proposal has been added as a new definition in the final rule. The definition clarifies that the requirements for an initial contract proposal do not apply to other proposals such as proposals to renew contracts governing programs, services, functions or activities that are already under tribal operation.
In response to one comment regarding the procedural aspects of reassumption, the definition of reassumption has been revised to refer the reader to the notice and other procedures set forth in
Subpart P.
One comment requested that the term Indian tribe be revised. The Committee rejected the comment in favor of the definition of this term already set forth in the statute and repeated in Sec. 900.6 of the final rule.
Two comments urged that the Secretary add a new definition of the term consultation to establish a framework for this activity. The Committee rejected this proposal as beyond the scope of subjects which may be regulated under section 107(a)(1) of the Act. Similarly, the Committee rejected requests that the regulations include a definition of trust responsibility.
In the NPRM, the public was invited to comment on the disagreement within the Committee regarding the development of internal agency procedures. Specifically, as noted in 61 FR at 2039-2040, tribal representatives on the Committee urged that internal agency procedures be developed in precisely the same fashion as other regulations implementing the Indian Self-Determination Act Amendments of 1994, through the use of the negotiated rulemaking process. Federal representatives on the Committee supported instead a joint tribal and Federal commitment to work together to generate a procedural manual which would promote the purposes underlying the Act and facilitate contracting by Indian tribes and tribal organizations. The Federal committee members proposed committing to a firm timeline within which to produce such a manual. Further, the Federal Government committed to
meaningful consultation throughout the manual development process.
The Departments received many comments from tribal representatives addressing the issue of internal agency procedures as a subject for negotiated rulemaking. Those comments consistently supported the tribal proposal to include a Subpart in the regulation concerning internal agency procedures.
Many of the comments indicated a belief that all internal agency procedures under which Indian tribes and tribal organizations exercise their self-determination should be promulgated by negotiated rulemaking. Those comments cited sections 107 (a) and (d) of the Act as authority for their recommendation.
Tribal representatives also indicated a concern that absent formal rulemaking, Federal agencies might use internal procedures to circumvent the policies underlying the Act, thwarting the intent to simplify the contracting process and free Indian tribes from excessive Federal control. Two comments suggested that negotiating rulemaking procedures will ensure that Federal agencies would be bound to follow uniform procedures to implement and interpret the Act and the regulations.
Two other comments wanted the regulation to state explicitly that the Secretaries lack authority to interpret the meaning or application of any provision of the Act or the regulations. Tribal representatives feared that a myriad of letters containing policy statements and correspondence interpreting reporting requirements would result if internal agency procedures are not tied to formal rulemaking.
In response to the Federal proposal as detailed in the NPRM, several comments stated that it would not be acceptable to develop a manual in a setting which is less formal and structured than a negotiated rulemaking committee. In addition, comments objected that developing such a manual after the publication of a final regulation would violate the mandatory deadline imposed on the Secretaries by Congress.
Several comments were suspicious of the government's commitment to seek tribal consultation on internal agency procedures. They stated that consultation alone would be insufficient to ensure that Indian tribes and tribal organizations are accorded the full benefits of the Act. Without full and active participation, one comment stated, Indian tribes would be in the position of attempting to change decisions made in advance by Federal agencies.
The Departments agree to an enhanced consultation process in developing procedures that do not involve resource allocation issues. Features of this enhanced process could include facilitation by professional facilitators, consensus decision-making, opportunity for comment by tribal entities, and
reporting of decisions to the Secretaries. The Departments will convene a meeting to begin this process within sixty days of the regulations becoming effective.
Subpart C -- Contract Proposal Contents
Summary of Regulation
Subpart C
contains provisions relating to initial contract proposal contents. In this area, the committee opted to have minimal regulations. Subpart C consists of a checklist of 13 items that must be addressed in a proposal. In addition, the regulation contains a provision relating to the availability of technical assistance to assist Indian tribes and tribal organizations in preparing a contract proposal, and a provision relating to the identification of Federal property that the tribe or tribal organization intends to use during contract performance.Summary of Comments
Several comments recommended amending Sec. 900.7 to permit the Secretary to provide technical assistance funding in addition to technical assistance. To reflect the concerns the two sentences were added at the end of the section. The first sentence authorizes the Secretary to make technical assistance grants, and the second authorizes an Indian tribe or tribal organization to request reimbursement of pre-award costs for obtaining technical assistance under the Act.
One comment recommended the insertion of objective standards in Sec. 900.7 to measure the authenticity of a claim that technical assistance cannot be provided due to the availability of appropriations. This recommendation was not adopted because the provision that technical assistance be subject to the availability of appropriations comes directly from Section 103(d) of the Act. In addition, it is clear that if qualified agency personnel are available, technical assistance will be provided to prepare an initial contract proposal.
Several comments recommended deleting the word must and inserting the word should in the first sentence of Sec. 900.8. This recommendation was not adopted because the proposal requirements in this subsection represent the minimum amount of information required for the Departments to approve a proposal.
Several comments generally objected to Sec. 900.8 on the grounds that it requires the production of information that the Federal Government has no right to know, or that is in excess of statutory requirements. Although some modifications were made to Sec. 900.8 in response to comments, it is the consensus of the Committee that the information included in the final version of Sec. 900.8 is necessary to protect Indian tribes or tribal organizations, or because it is essential information required by the Departments in order to be able to review or decline a contract proposal, to determine whether any of the statutory declination criteria exist.
A number of comments expressed concern that Sec. 900.8(d) does not clearly bar the Secretary from revising service area boundaries over the objections of tribes located in an established service area. This recommendation was not adopted because it is the intent of this provision for the applicant to define the service area. This specific provision was debated at length by the Negotiated Rulemaking Committee, and the proposed regulatory provision in Sec. 900.8(d) is the compromise agreed to by consensus of the Committee.
In response to a comment, the words an identification were deleted from Sec. 900.8(e), and replaced with the words the name, title, for clarification purposes.
In response to a comment, the words a description were deleted from Sec. 900.8(g)(3), and replaced with the words an identification for clarification purposes.
In response to a comment, Sec. 900.8(g)(7) was amended to read minimum staff qualifications proposed by the Indian tribe or tribal organization, if any for clarification purposes.
In response to several comments objecting to the requirement in Sec. 900.8(g)(4) that financial, procurement, and property management standards be included in the proposal, reference to these standards was deleted from this subsection, and a new subsection (g)(8) was added to require a statement that the Indian tribe or tribal organization meet minimum procurement, property, and financial management standards set forth in Subpart F, subject to waivers that may have been granted under Subpart K.
In response to several comments requesting that the words tribal shares be defined, Sec. 900.8(h)(1) was modified by removing these words and inserting the Indian tribe or tribal organization's share of funds.
In response to a comment, Sec. 900.8(h)(2) was amended by including the word start-up after the word one-time to make this section consistent with the Act.
Several comments objected to the use of the word budget in Sec. 900.8(h), and to the level of detail required under this subsection. This subsection was redrafted to delete the word budget wherever it appears, and replace it with amount of funds requested or funding request. In addition, Secs. 900.8(h)(1) (i), (ii), and (iii) were deleted.
In response to a comment that the information sought in Sec. 900.8(h)(5) was unnecessary, this subsection was redrafted for clarification purposes, and the words [a]t the option of the Indian tribe or tribal organization were added at the beginning of the subsection.
A new subparagraph (m) was added to Sec. 900.8 to provide that in its contract proposal, an Indian tribe or tribal organization must state that it will implement procedures appropriate to the program being contracted to assure the confidentiality of information relating to the financial affairs of individual Indians obtained under a proposed contract, and of medical records, or as otherwise required by law. While tribal comments objected to the imposition of regulatory procedures on confidentiality of personal financial information, many comments were received from Indian tribes indicating a concern that the confidentiality of personal medical records in the hands of tribal contractors be preserved, notwithstanding the opinion of DHHS Office of General Counsel that the Privacy Act does not apply to such records. The provision for such an assurance with respect to personal financial information resulted from a compromise in the Committee between the Federal and tribal positions.
In response to a comment suggesting that Indian tribes or tribal organizations should receive a list of Federal property used in carrying out programs to be contracted, a new question and answer were added immediately preceding Sec. 900.10. In response to a comment, this new section also includes a requirement that the condition of the property be described.
In response to a comment, Sec. 900.11(a)(4) was modified to add the words real and personal before the word property for clarification purposes.
Several comments requested clarification regarding whether the contract proposal becomes part of the contract document. In response, a new question and answer were added to clarify that the contract proposal becomes part of the final contract only by mutual agreement of the parties.
Several comments suggested that Subpart C be clarified to address what is contractible and what is inherently Federal and thus residual. The Committee did not adopt the suggestion. Federal agency decisions regarding residual functions are subject to the appeals process.
Subpart D -- Review and Approval of Contract Proposals
Although this topic is part of the declination process, it has been pulled out for separate treatment to facilitate a clearer understanding of the entire contracting process. In this area, the committee opted to have minimal regulations. This subpart details what the Secretary must do upon receiving a contract proposal, the time frames applicable to Secretarial review, how the 90-day review period can be extended, and what happens if a proposal is not declined within the 90-day period.
Summary of Comments
One comment indicated that the word Secretary in this Subpart does not define where the proposal should actually be submitted. Subpar B defines the word Secretary to include either Secretary or their delegates. It is clear that a proposal should therefore be submitted to the agency with jurisdiction over the program to be contracted, i.e., the Bureau of Indian Affairs, the Indian Health Service, the Bureau of Land Management, the National Park Service, etc.
A comment suggested amending Sec. 900.15(a) to require the Secretary to return any proposal lacking the required authorizing resolution(s) to the applicant without further action. This suggestion was not adopted because Sec. 900.15(b) requires that the applicant be notified of any missing information. It should be clear, however, that Section 102(a)(2) of the Act only requires the Secretary to consider a proposal if so authorized by an Indian tribe pursuant to the tribal resolution required under Section 102(a)(1) of the Act. Therefore, although technically outside of the enumerated declination criteria in Section 102(a)(2) of the Act, it is also clear that the Act precludes the approval of any proposal and award of any self-determination contract absent an authorizing tribal resolution.
Several comments requested that the 15-day timeframe in Sec. 900.15 be cut to 10 days. This suggestion was not adopted because 15 days are needed to evaluate the application. The word request was added before the words that the items in this subsection for clarification purposes, and in response to several comments.
Several comments expressed concerns with the failure of this Subpart to specify what happens when a proposal is approved. The comments recommended addressing the award and funding of the contract. In response to these concerns, the question and the answer in Sec. 900.16 were amended to reflect that the award of the contract occurs upon approval of the proposal. Also, the committee added the words and add to the contract the full amount of funds pursuant to Sec. 106(a) of the Act were added at the end of Sec. 900.18. Also, a new section was added to explain what happens when a proposal is approved.
One comment suggested adding a provision in Sec. 900.18 to provide that costs incurred after the 90-day period be deemed allowable costs under the contract and be reimbursed. This suggestion was not adopted because it is beyond the scope of this Subpart.
A comment inquired whether the 90-day period continues to run if the Indian tribe is notified that there are missing items, or whether the 90-day period starts only when there is a complete proposal. The regulation in Sec. 900.15(b) requires the Secretary to notify the applicant of any missing items, and to request the applicant to furnish these items within 15 days. If the applicant fails to submit the missing items altogether, the Secretary must either approve or decline the proposal that was received within 90 days of receipt. Similarly, if the applicant submits the missing items within the 15-day deadline, the 90-day period continues to run from the time of receipt of the original proposal.
Subpart E -- Declination Procedures
Summary of Subpart
This subpart implements sections 102 (a)(2), (a)(4), (b) and (d) of the Act. It restates the statutory grounds for declining a contract proposal, clarifies that a proposal cannot be declined based on any objection that will be overcome through the contract, and details procedures applicable for partial declinations. Subpart E also informs Indian tribes and tribal organizations of the requirements the Secretary must follow when a declination finding is made, contains provisions for technical assistance to Indian tribes and tribal organizations to avoid a declination finding, and to overcome stated declination grounds after a declination finding is made.
Summary of Comments
Several comments noted that the proposed regulations fail to address the continuation of mature contracts, and recommended that this issue be addressed. This recommendation was not adopted because there is no statutory authority to issue regulations on the mature contract process. In addition, the right to mature contracts is addressed in Section 105(c)(1) of the Act and in the Model Contract under Section 108 of the Act. Continuation of any contract is also addressed in Sec. 900.32 of the final rule.
One comment recommended that declination of construction contracts be addressed in this Subpart. This recommendation was not adopted because this issue is addressed in Sec. 900.123 of the final rule.
Several comments recommended a further explanation of the criteria in Sec. 900.22. These comments were not adopted because it was decided not to interpret the declination criteria in the regulation, but to leave their interpretation to case-by-case adjudication.
One comment suggested adding an applicant s failure to submit the single agency audit report and/or failure to correct prior audit deficiencies as a declination ground in Sec. 900.22. This comment was not adopted because there is no statutory authority to add declination criteria to those specified in Section 102(a)(2) of the Act.
In response to a comment, the reference to Section 106 of the Act in Sec. 900.26 was replaced with a reference to Section 102(a) of the Act.
There were numerous comments objecting to the document disclosure provisions in Sec. 900.27 of NPRM (now Sec. 900.29). In response to these objections, Sec. 900.27(a) was amended to delete the words when appropriate and replace them with the words within 20 days. In addition, Sec. 900.27(c) was deleted in its entirety.
Several comments requested that the Secretary s burden of proof when declining a proposal in Sec. 900.29(a) be changed to clear and convincing evidence. This recommendation was not adopted because it is different from the statutory burden of proof contained in Section 102(a)(2) of the Act.
A comment requested that the technical assistance to be provided in Sec. 900.30 be clearly identified. This recommendation was not adopted because the type of technical assistance required will vary with each proposal. It is impossible to define generally the type of technical assistance required for all proposals.
Pursuant to several comments, the word substantively was deleted from two places in Sec. 900.32, and replaced by the word substantially.
The Committee received several comments regarding the ability of the BIA and other agencies of the Department of the Interior to review contract renewal proposals for declination issues, where the renewal proposal is substantially similar to the contract previously held by that Indian tribe or tribal
organization. In the past, as a matter of practice, neither IHS nor the BIA has reviewed contract renewal proposals for declination issues. Therefore, the Departments have agreed that IHS and the BIA will not use the declination process in contract renewals where there is no material or significant change to the contract. However, as no past practice exists for the non-BIA agencies within DOI, those agencies will have discretion to use the declination process in appropriate contract renewal situations. The regulatory language of Sec. 900.32 has been amended to reflect this decision.
Subpart F -- Standards for Tribal or Tribal Organization
Management Systems
Summary of Subpart
Indian self-determination contracts are unique agreements because, by definition, they are not procurement contracts, discretionary grants or cooperative agreements. This means that none of the usual procurement or grant regulations apply to the management of the Federal funds provided under these contracts. The absence of established guidelines presented a special challenge to the committee to develop standards which would assure appropriate stewardship of the Federal funds and other assets being transferred through these contracts. Deliberations on this issue led to the review of OMB Circular A_102 and the Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments (the Common Rule ). Although an Indian self-determination contract is not a discretionary grant, the Common Rule provides certain government-to-government management principles that apply to discretionary Federal grants to states, local governments, and Indian tribes.
The Common Rule has two-tiered management rules. On one tier, it generally defers to state law and regulations and accepts a state s management standards without imposing more detailed requirements. On the second tier, other local governments and Indian tribes (which vary greatly in size and structure) must observe the Rule s more detailed standards for the management of Federal grants.
In the interest of giving greater recognition to the government-to-government relationship which exists between Indian tribes and the Federal government, and to transfer greater responsibility to Indian tribes commensurate with their status, the committee established standards permitting the management of contract resources in accordance with tribal laws, regulations and procedures, just as the Common Rule permits states to manage Federal resources in accordance with state laws and procedures. Systems established by Indian tribes will govern the administration of contracts provided that they include the core management principles or standards adopted from the Common Rule which the committee determined best meet the needs of Indian tribes and tribal organizations.
Subpart F contains provisions relating to the following management standards: (1) Financial Management; (2) Procurement Management; and (3) Property Management. In all of these areas the advisory committee designed minimal regulations that focus on the minimum standards for the performance of the three management systems used by Indian tribes and tribal organizations when carrying out self-determination contracts.
The standards contained in this subpart are designed to be the targets which the Indian tribe and tribal organization s management systems should be designed and implemented to meet. The management systems themselves are to be designed by the Indian tribe or tribal organization.
Section 900.36 contains general provisions which apply to all management system standards contained in this subpart. Subpart F includes provisions that: (1) Identify the management systems that are addressed; (2) set forth the requirements to be imposed; (3) limit the applicability of OMB circulars; (4) provide that the Indian tribe or tribal organization has the option to impose these standards upon subcontractors; (5) identify the difference between a standard and a system; and (6) specify when the management standards and management systems are evaluated.
Section Sec. 900.44 contains the standards for financial management systems. Subpart F establishes the minimum requirements for seven elements including: (1) Financial reports; (2) accounting records; (3) internal control; (4) budget control; (5) allowable costs; (6) source documentation; and (7) cash management.
Section 900.47 contains standards for procurement management systems. This subpart establishes the minimum requirements for seven elements: (1) To ensure that vendors and subcontractors perform in accordance with the terms of purchase orders or contracts; (2) to require the Indian tribe or tribal organization to maintain standards of conduct for employees award contracts to avoid any conflict of interest; (3) to review proposed procurements to avoid buying unnecessary or duplicative items; (4) to provide full and open competition, to the extent feasible in the local area, subject to the Indian preference and tribal preference provisions of the Act; (5) to ensure that procurement awards are made only to entities that have the ability to perform consistent with the terms of the award; (6) to maintain records on significant history of all major procurements; and (7) to establish that the Indian tribe or tribal organization is solely responsible for processing and settling all contractual and administrative issues arising out of a procurement. In addition, the regulation provides that each Indian tribe or tribal organization must establish its own small purchase threshold and definition of major procurement transactions ; establish minimum requirements for subcontract terms, and include a provision in its subcontracts that addresses the application of Federal laws, regulations and executive orders to subcontractors.
Section 900.51 contains the minimum requirements for property management systems. Subpart F addresses the standards for both Federally-titled property and property titled to an Indian tribe or tribal organization, with differences based upon who possesses title to the property. As a general rule the requirements for property where the Federal agency retains title are higher than requirements for property where the Indian tribe or tribal organization holds the title. Subpart F addresses elements including: (1) Property inventories; (2) maintenance of property; (3) differences in inventory and control requirements for property where the Federal agency retains title to the property; and (4) the disposal requirements for Federal property.
Summary of Comments
A comment requested that the rule clarify the application of Office of Management & Budget (OMB) Circulars or portions of OMB Circulars that apply to the operation of Indian Self-Determination Act contracts.
Section 900.37 specifies that the only OMB Circulars that apply to self-determination contracts are those (1) Incorporated the by Act, such as OMB Circular A-128, Audits of States and Local Governments ; (2) adopted by these regulations; or (3) agreed to by the Indian tribe or tribal organization pursuant to negotiations with the Secretary. In regard to these regulations, Sec. 900.45(e) identifies the appropriate OMB Circular Cost Principles that should be used in determining the propriety of contract costs.
One comment asked the Committee to delete Sec. 900.40(a) because it is overreaching and exceeds statutory requirements. This section was a fundamental underpinning of the entire Subpart. The negotiators agreed that the regulations would include standards, to be treated as minimum requirements, for the administration of contracts. For an initial contract proposal only, Federal officials may review the standards proposed by the Indian tribe or tribal organization, to determine that they meet or exceed these minimum regulatory requirements. Indian tribes or tribal organizations are responsible for the implementation of administrative systems that meet the standards and that are subject to review in accordance with the Single Agency Audit requirements as provided in Section 5(f) of the Act. In many respects, this dichotomy between the standards and systems was designed to acknowledge the unique and special nature of self-determination contacts (non-procurement intergovernmental agreements) and a shift in the regulatory emphasis from the unnecessary and burdensome review of systems to an emphasis on the acceptance of fundamental guiding management principles. This approach is consistent with provisions in the Act at Sections 5(b), 102(a)(2), 105 (a)(1) (2) and (3) and 107(a)(1) and in the Model Contract Section 108(b)(7)(c). For these reasons no change was made in Sec. 900.40.
It was suggested that the Committee delete the words or tribal organization in Sec. 900.42 from both the question and the answer as this section applies only to Indian tribes. The comment was correct and the words have been deleted.
The Committee was requested to clarify the period of time that Indian tribes and tribal organizations must retain records of contract operations. A new Sec. 900.41 was created to address these issues. That section specifies that Indian tribes and tribal organizations should keep: (1) Financial records for three years from the date of the single audit submission; (2) procurement records for three years from the date of final payment to the supplier; and (3) property management records for three years from the date of disposition, replacement or transfer of the property. In addition, records related to litigation, audit exceptions and claims should be retained until the action is completed.
One comment suggested that the regulation provide for the Secretary to obtain consistent and timely financial information to respond to Congressional inquiries and to otherwise support budget justifications. Section 900.45(a) was amended by adding a provision that provides for the submission of a Financial Status Report, SF-269A. The frequency of submission of the SF-269A remains the subject of negotiation between the Indian tribe or tribal organization and the Secretary. The Department expect that the frequency will not be less than once per year. This change only affects how the information is transmitted to the government and is consistent with Section 5(f)(2) of the Act.
The committee was asked to specify which of the three Office of Management and Budget Circulars dealing with cost principles apply to a tribal organization. In that regard, a tribal organization could be a chartered entity of a tribe, a non-profit organization, and/or an educational institution.
Section 900.45(e) has been amended by revising the parenthetical statement and including a chart to clarify the application of the Office of Management & Budget circulars. The parenthetical statement makes clear that which circular is applicable is negotiable with the Secretary and that current agreements concerning Office of Management and Budget cost principles need not be renegotiated.
The committee was asked to adopt proposed clarifying language for Subsection 900.45(g). The regulations were amended to adopt the suggested language that provides a more accurate description of the standards for a cash management component of financial management systems.
One comment suggested adding the following new language to Sec. 900.45(h):
If an Indian tribe or tribal organization contracts to assume a program, service, function, or activity which includes a physical trust asset or natural resource, the Indian tribe or tribal organization shall enter upon its financial management system and provide for an accurate, current, and complete disclosure of the value of those assets, provide for an accurate, current and complete disclosure of funds by source and application utilized to keep the physical trust assets or natural resources in good repair and maintenance; provide for an accurate, current, and complete disclosure of any increase or decrease in the valuation of the asset; and provide for an accurate, current and complete disclosure of any other costs, function or activity which would improve, increase, or cause devaluation or decrease in the value of the physical trust asset or natural resource as would be required to account for any asset using generally accepted accounting principles and standards.
The Committee did not include this provision principally because it is beyond the scope of these regulations. Currently, the United States does not track the values of natural resources (i.e. national parks or Indian lands) in this fashion. Therefore, no financial basis exists to begin the process. The cost of establishing the basis would undermine and frustrate self-determination contracting. While the proposal has merits, it would not be possible to implement it effectively until appropriate guidance is issued on valuation of Federal natural resources, the United States enters the information in its financial records, and funds are made available to tribal governments to cover the cost of
implementation. In regard to guidance, the Federal Accounting Standards Advisory Board has not issued any authoritative instructions on the valuation of Federal natural resources. This matter is currently under consideration by the Board.
Another comment asked the Committee to revise Sec. 900.46 to require the Secretary to be held to a strict standard of compliance with the terms of the contract and the annual funding agreement. Further, the comment suggested deleting the words In regard to paragraph (g) of Sec. 900.44 [of the NPRM] and based upon the payment schedule provided for in. The Committee was asked to add in strict compliance with for the last phrase deleted. Section 900.46 was amended to make this section of the regulations consistent with the statute.
A comment recommended that Sec. 900.48(c) be amended to include provisions requiring cost and price analysis in the procurement standards. Subsection Sec. 900.48(c) was amended by adding the phrase and ensure the reasonableness of the price at the end of the subsection. This was done to ensure that cost or price analysis be considered in all procurements, but to avoid the application of a full Federal procurement-type cost or price analysis since self-determination contracts are not subject to the Federal Acquisition Regulations (FARs). It is the responsibility of the Indian tribe or tribal organization to design a procurement system based upon the standards in Subpart F. The amendment will require those systems to consider the reasonableness of price when making procurement purchases.
The Committee was asked to clarify Sec. 900.50, including the provision of further guidance about the application of tribal law generally and the application of Tribal Employment Rights Ordinances (TERO) specifically. Sec. 900.50 was substantially revised, to make clear that subcontracts by an Indian tribe or tribal organization may require the subcontractor to comply with certain provisions of the Act and other Federal laws. The new language informs subcontractors that they are responsible for identifying and complying with applicable Federal laws and regulations. The section was further amended to provide that, to the extent the Secretary and the Indian tribe or tribal organization identify and specify laws and regulations that are applicable to subcontracts in the negotiation of the self-determination contract, those identified and specified provisions will then be included in subcontracts.
These regulations do not specifically address the application of tribal law, but establish minimum standards for the operations of management systems. Indian tribes may exercise discretion and create higher standards by operation or enactment of tribal law. Similarly, an Indian tribe may seek a waiver of a standard as noted in Sec. 900.36 of the regulations. Nothing in the regulations is designed to supersede or suspend the operation of tribal law that meets these standards. Further nothing in the regulations affects the operation of tribal law to activities not paid for by self-determination contract funds.
Sections 7(b) and (c) of the Act authorize the application of Indian Preference and Tribal Preference (TERO) in the performance of a self-determination contract. To the extent a TERO ordinance is consistent with the terms of Section 7(b) and (c) of the Act it can be made applicable to procurement subcontracts.
Property Management
The Committee was asked to define sensitive property in Sec. 900.52, and as a result, a definition of sensitive personal property was inserted at Sec. 900.52(b). That definition includes all firearms and provides that the Indian tribes and tribal organization are to define such other personal property that is subject to theft and pilferage. Since the activities vary from contract to contract to such a large extent, the committee decided that a locally-created definition best meets the needs of all contractors.
One comment indicated Sec. 900.60(b) might require revision regarding the authority of an Indian tribe or tribal organization to dispose of Federal property. The Committee revised subsection (b) of Sec. 900.60 by deleting all of subsection (1), that previously allowed for disposal if the Secretary failed to respond to a disposal request. As a result, if the Secretary fails to respond to a request from an
Indian tribe or tribal organization within the sixty day period, the Indian tribe or tribal organization may return the Federal property to the Secretary. The Secretary is required to accept the property and is required to reimburse the contractor for all costs associated with the transfer. This ensures that Indian tribes and tribal organizations have a process to dispose of unneeded Federal property, and the reimbursement of transfer costs should provide the Secretary with an incentive to respond in a timely fashion to disposal requests
The committee was asked to clarify that the property disposal procedures in Sec. 900.60 only apply to personal property, because the answer to the question uses the terms personal property and property. Using the term property which, by definition, includes both real and personal property, creates ambiguity about application of the paragraph to the disposal of real property.
Section 900.60 only applies to the disposal of personal property. The matter has been clarified through editorial revision of the introductory question, to read as follows: How does an Indian tribe or tribal organization dispose of Federal personal property?
Subpart G -- Programmatic Reports and Data Requirements
Summary of Subpart
This brief subpart provides for the negotiation of all reporting and data requirements between the Indian tribe or tribal organization and the Secretary. Failure to reach an agreement on specific reporting and data requirements is subject to the declination process. Although the Indian Health Service proposes to develop a uniform data set, that data set will only be used as a guide for negotiation of specific requirements.
Summary of Comments
One comment argued for the revision of Sec. 900.65, that provides for the submission of programmatic reports and data to meet the needs of the contracting parties. The comment was concerned that the section could be used to force Federal minimum reporting requirements upon Indian tribes and tribal organizations despite the provision in Section 5(f) of the Act that make reporting the subject of negotiations.
Section 900.65 has been amended to address the comment. A new introductory sentence was added that makes clear that unless there is a statutory requirement, these regulations create no mandatory reporting requirements. The negotiation of reporting is to be responsive to the needs of the parties and appropriate for the purpose of the contract. This provides the Indian tribe or tribal organization, as well as the Secretary, with guidance and limits for negotiations. Furthermore, because of the numerous comments made concerning the Sec. 900.65 provision, meet the needs of the contracting parties, and the amendment noted above, Sec. 900.67 was also amended to make it consistent with Sec. 900.65 by substituting, which responds to the needs of the contracting parties, for meets the needs of the contracting parties .
The Committee was asked to clarify grammar in Sec. 900.68. The Committee concluded that the word for was inadvertently included in the first line of Sec. 900.68. The word for has been removed and a comma added between the words set and applicable in the first line. This should eliminate the confusion.
Subpart H -- Lease of Tribally-Owned Buildings by the Secretary
Summary of Subpart
and allows for the definition of other reasonable expenses to be determined by regulation. This subpart provides a non-exclusive list of cost elements that may be included as allowable costs under a lease between the Indian tribe or tribal organization and the Secretary. It further clarifies that except for fair market rental, the same types of costs may be recovered as direct or indirect charges under a self-determination contract.
The Subpart was substantially revised based upon comments received following the NPRM. Please note that two sections have been added, and previous Sec. 900.71 and Sec. 900.72 have now become Sec. 900.73 and Sec. 900.74 respectively.
Summary of Comments
Comments requested that the Committee specify the type of account and the guardian of the account for a reserve for replacement of facilities identified in Sec. 900.70(c).
The final regulation adds two new sections to accomplish this. New Sec. 900.71 was added to set forth the type of account as a special revenue fund or a capital project fund. New Sec. 900.72 was also added to provide that the Indian tribe or tribal organization is the guardian of the fund. It permits fund investments in a manner consistent with the laws, regulations and policies of the Indian tribe or tribal organization, subject to lease terms and the self-determination contract.
The Committee was asked to add landscaping costs to those items of cost included in
Sec. 900.70(e)(1-16). No such addition was made as the Committee believed that such costs were included in either subsection (8) or subsection (16) of Sec. 900.70(e).
Likewise, another comment suggested adding profit to those matters listed in Sec. 900.70(e). In the Committee s view, a lease based upon fair market value provides for the recovery of profit, adjusted as appropriate, based upon the Federal Share (if any) of acquisition or construction. Therefore, no change was made to this provision.
The committee was asked to identify the source of funds for these lease payments. The source of funds is a subject of negotiation between the parties to a self-determination contract.
Subpart I -- Property Donation Procedures
Summary of Subpart
This subpart establishes procedures to implement section 105(f) of the Act. Section 900.85 provides a statement of the purpose of the subpart and explains that while the Secretary has discretion in the donation of excess and surplus property, maximum consideration must be given to an Indian tribe or tribal organization s request.
This subpart also contains a provision for the Secretary to elect to reacquire property under specific conditions. It clarifies that certain property is eligible for operation and maintenance funding, as well as for replacement funding on the same basis as if title to the property were held by the United States. Section 900.87 provides for the transfer of property used in connection with a self-determination contract. It provides slightly different procedures for personal property versus real property furnished before the effective date of the 1994 amendments and another procedure for property furnished after the enactment of the 1994 amendments.
Sections 900.91 and 900.92 address Sec. 105(f)(2)(A) of the Act, which provides that a tribal contractor automatically takes title to property acquired with contract funds unless an election is made not to do so. It also addresses the process for requesting that real property be placed in trust.
excess or surplus property from other Agencies.
Summary of Comments
The committee was asked to clarify this Subpart as it is confusing and generally repetitive. The Subpart addresses the methodology that provides property to Indian tribes and tribal organizations pursuant to the Indian Self-Determination Act. Because there are several classes of property, with varying rights and mechanisms, the Subpart must address each separately. In order to reduce confusion, the final regulations provide more uniformity depending on the property type.
It was suggested that the Committee restore the language that was initially adopted by the Committee, but not included, in Sec. 900.86. The language change in the NPRM accommodates the use of plain English and was not intended to change the manner in which the Secretary exercised discretion. The Committee has reinstated the originally-approved version by striking the words give maximum weight and substituting exercise discretion in a way that gives maximum effect following the word will in the first line of the answer in Sec. 900.86. A similar amendment can be found at Sec. 900.97(a).
To ensure clarity, several comments requested that the regulation specify as to whether property is real property or personal property in given instances. The Committee has used the word property in these regulations to mean both real and personal property except where not applicable to one or the other type of property. If either the words real or personal modify property that provision is limited to that type of property.
The committee was asked to change the incorrect reference to 41 CFR 101-47, 202.2(b)(10) in Secs. 900.87(b)(2) and (c)(2). The mis-citation has been corrected.
In addition, the committee was asked to delete the terms justify and certify in Sec. 900.86 as well as Sec. 900.97 and Sec. 900.104 because these terms frustrate the statutory intent and limit access to property needed to carry out self-determination contracts. The Committee amended the above-noted sections and substituted state how or statement of how for the justify and certify provision. This was done to make clear that what is needed is a concise, simple statement of how the subject property is appropriate for use for a purpose of which a self-determination contract is authorized under the Act the statutory language. The Committee expects that the deletion of the terms justify or certify makes it clear that no detailed submission will be required by the Secretary or his designee.
Comments requested revision in the process described in Sec. 900.87 pertaining to property that was made available before or after October 25, 1994. The Committee has chosen not to make changes, as the October 25, 1994 date is the result of the 1994 Amendments to the Act. That date is the effective date of Public Law 103-413. Those amendments provided at Section 105 of the Act that Indian tribes or tribal organizations could take title to government-furnished property used in performance of the contract property unless the Indian tribe or tribal organization preferred the Secretary to retain title. Prior to October 25, 1994, title to such property remained with the Secretary.
This provision allows an Indian tribe or tribal organization to receive title to government-furnished property put in use prior to October 25, 1994. In part, that allows Indian tribes or tribal organizations greater flexibility with the Property Management standards in Subpart F above. For these, reasons no further changes were made in Sec. 900.87.
One comment suggested that the regulation clarify the references to the value of property subject to reacquisition or acquisition by the Secretary at the time of retrocession, reassumption, termination or expiration of the contract. Among the concerns expressed were the value at the time of reacquisition, whether it was acquisition or reacquisition, the lack of consideration of depreciation, and the use of property by multiple contracts when only one or a portion of one contract triggers this issue. These comments relate to Sections 900.89, 900.93, and 900.100, all of which address this issue depending upon the class of property.
The Committee took action to make uniform sections 900.89, 900.93, and 900.100. These new sections all contain an additional subsection that addresses the issue of property used in multiple contracts. This new subsection provides that the Secretary and contractor shall negotiate an
acceptable arrangement for continued sharing and the title to the property.
In order to address current value (at the time of retrocession, etc.) the section was revised to current fair market and another clause was added, less the cost of improvements borne by the Indian tribe or tribal organization. This was done so that where an Indian tribe or tribal organization has made improvements to a piece of property, the value of the improvements is factored into arriving at the $5,000 value threshold. The Committee also reviewed the depreciation questions but concluded that the current fair market value approach would adequately take these factors into consideration. Moreover, since services would be provided to Indian beneficiaries by the Secretary, the best approach with the reacquired property was current fair market value.
In regard to Sec. 900.93, one comment proposed a change to the question by substituting reacquire for acquire. Upon review the Committee concluded that acquire was the correct term because this section addresses contractor-purchased property. In that instance, the Secretary has never had title and acquire is the proper term.
The revisions to the above-noted sections have also been incorporated into Subpart P of the regulations. No further comments will be discussed in this preamble on Sections 900.89, 900.93, or 900.100 since the operative provisions are now uniform.
With regard to Sections 900.96 and 900.103, several comments asked when the Secretary will notify Indian tribes and tribal organizations about the availability of excess BIA and IHS personal property and GSA excess and surplus property. Suggestions of quarterly or semi-annually were made. At both Sec. 900.96 and Sec. 900.103 the term not less than annually has been added. This creates a minimum requirement that the Secretary must meet yet allows for more frequent notices.
Some comments asked the Committee to provide further instruction in Sec. 900.97(b) relating to multiple requests by contractors the same excess or surplus property.
The Committee revised these subsections to clarify what will occur in that situation. In regard to personal property, the request first received by the Secretary will have precedence. If the requests are received by the Secretary on the same date, the requester with the lowest transportation costs will prevail.
A technical amendment was made to Sec. 900.97(c) by changing piece of real property to parcel of real property .
The committee was asked to delete the reference to the Federal Property Management Regulation, 41 CFR Chapter 101, as that reference had at Sec. 900.104(b) the potential to incorporate an entirely different set of regulations, not consistent with the Act. The references to the Federal Property Management Regulation (FPMR) and 41 CFR Chapter 101 were deleted and Section 900.86 of this Subpart was substituted. The Committee made this revision to reflect that these regulations are unique to self-determination contracts and to avoid any conflict between these regulations and the FPMR.
Several comments were made concerning the need for the Secretary to act expeditiously to acquire excess or surplus government property when the property is frozen by the Indian tribe or tribal organization, in Sec. 900.104(c). The Committee revised subsection (c) of Sec. 900.104 by harmonizing the several suggestions.
Several comments called for clarification of Sec. 900.107 by explaining which type of property remains eligible for replacement funding. The Committee changed the question in Sec. 900.107 and deleted Yes from the answer. This makes clear that government-furnished property,
